202 Ky. 433 | Ky. Ct. App. | 1924
Opinion op the Court by
Affirming.
On December 5, 1884, Anna E. Baker and ber tben husband, J. H. Baker, who was her second one, executed a deed to Nannie W. Neeley, a daughter of Mrs. B'aker by a former husband by the name of Laughlin, conveying to the daughter a parcel of real estate in Lexington, Kentucky. The parties named in the caption of the deed are Mrs. Baker and her husband “party of the first part, and Nannie W. Neeley, wife of James E. Neeley, of the county of Simpson, state of Kentucky, party of the second part; ’ ’ and in the- conveying clause, after reciting the consideration of one dollar and love and affection, it is said: ‘ ‘ The party of the first part do hereby sell and convey unto the party of the second part, -and assigns, the following described real and personal property, to-wit.” The habendum clause says; “To have and to hold said property unt'o the party of the second part, her assigns
On February 13, 1906, an equity action was filed in the Fayette circuit court by Mrs. Baker, Mrs. Neeley and the husband of the latter against all of the then living grandchildren, and descendants of those who were dead, of Mrs. Baker to procure a sale of the land conveyed by the 1884 deed for purposes of reinvestment. It was practiced in strict conformity to the law and resulted in a judgment -directing the land to be sold and the proceeds reinvested in other real property producing a greater income. The deeds were taken to the several parcels in which the investment was made and the title conveyed by them was, under the direction of the court, made to Anna E. Baker “for and during her natural life, and at her death to pass to her daughter, Nannie W. Neeley, during her natural life, .... and after the death of said Amia E. Baker and Nannie W. Neeley to pass in fee simple in equal parts to the grandchildren of said Anna E. Baker.” Mrs. Baker died testate in 1919 and left surviving her four children, three sons and one daughter, Mrs. Neeley. In her will she devised all of her property to her children and to others than her grandchildren or the descendants of any who were dead. Mrs. Neeley died testate in 1921, and in her will she devised all of her property, excluding some small special bequests, to her only grandson, John B. Murillo, Jr., with the condition that if he should die without descendants then it should go to others named in the will. He was the only child of a deceased daughter of Mrs. Neeley and she left no surviving child or other grandchild. The mother of John B. Murillo, Jr., was alive in 1906, and was a party to the reinvestment suit but he, although living at that time, was not a party thereto; nor did the judgment in that case expressly attempt to construe the 1884 deed, or to determine the- validity of the clause therein, or those in the reinvestment deeds, conveying
This equity action was filed in the Fayette circuit court by some of the grandchildren of Mrs. Baker against the others, and the surviving children of those who were dead, to obtain a division of the respective" parcels of land in which the reinvestment was made, and a sale for that purpose was asked, resulting in a judgment directing the several parcels to be sold by the master commissioner, which he did. After filing his reports some of' the purchasers filed exceptions thereto on the ground that the limitation to the grandchildren in the 1884 deed, as well as those of the reinvestment deeds, was void because repugnant to the provisions of section 2360 of our statutes, commonly known as Kentucky’s statute against perpetuities. Upon-the trial of those exceptions, the entire record of the 1906 suit was filed and considered and the court sustained the exceptions and set aside the sale made to the exceptors and appellants prosecute this appeal from that judgment.
It will at once be seen that the question as to the validity of the attached limitation on the title of Mrs. Neeley, under the 1884 deed, by which her first conveyed title of a fee simple was reduced to only a. life estate, is not presented for determination on this appeal; for if that limitation therein to the grandchildren was invalid because it reduced Mrs. Neeley’s prior granted fee (a question we do not decide), Mrs. Neeley, upon the execution and delivery of that deed, took an absolute fee to the property conveyed, divested of both the life interest of Mrs. Baker, as well as the attempted limitation to her grandchildren after the death of Mrs. Neeley, and as a necessary consequence the parcels of land involved in this litigation which were purchased with the proceeds of that lot became also her absolute property and passed under her will, unless the 1906 judgment estopped her from so contending. In that case none of the parties to this litigation would have any interest in it except her grandson, John B. Murillo, Jr., who, as we have seen, was given by Mrs. Neeley’s will a defeasible fee. Therefore, if that interpretation should be given that deed the court was correct in sustaining the exceptions to the sale.
But, waiving that question, and coming to the one which, no doubt, influenced the court in sustaining the exceptions, we will treat that deed as conveying only a
We are, therefore, clearly of the opinion that the court properly held that the parties to this litigation did not acquire any title to the property involved under any of. the deeds referred to. It is intimated in briefs of counsel, however, that the judgment in the 1906 proceedings adjudged otherwise, and that the res adjudicaba estoppel produced thereby operated to vest the parties with a perfect title, which, if true, as contended, it would render the title of the purchasers from the master commissioner perfect, and the exceptions should have been overruled. But, without intimating any opinion on that question, it is sufficient to say that the question was not presented in this case in a manner authorizing us to determine it, nor could it have been done without the devisees of Mrs. Baker and those of Mrs. Neeley being parties to the suit, which they were not. It is true that both Mrs. Baker and Mrs. Neeley were parties to that proceeding and their devisees would be bound by the legal effect of that judgment and the same as they would be, but the devisees have the right to be heard on that question and nothing that we might say in this opinion would be binding on them.
We are also asked to determine where the title to the property is if it was not possessed by plaintiffs and defendants in this case? A number of objections may be interposed to our determining the question at this time, one of which is that “Sufficient unto the day is evil thereof.” The question is not presented nor are those